The Justice Department and its Executive Office for Immigration Review (EOIR) have failed to complete significant parts of their 22-point plan to improve the performance of the nation's Immigration Courts, according to a detailed analysis by the Transactional Records Access Clearinghouse (TRAC). While major shortcomings were identified, the study also found areas where the proposed changes were adopted.

Former Attorney General Alberto Gonzales issued the improvement plan in 2006 in the wake of a series of federal appellate court rulings that sharply criticized the Immigration Courts. The proposed plan also followed the publication of detailed statistical studies by TRAC and others documenting extraordinary disparities in how individual immigration judges were deciding asylum matters. The studies showed that case outcomes were frequently determined more by the outlook of a particular judge than the underlying facts.

The Justice Department has failed to implement measures that would increase oversight of immigration judges, make the immigration appeals process more rigorous, or to consistently seek funding for additional judges.

More recently, the Justice Department's Office of Professional Responsibility and its Inspector General dealt the Immigration Court system a further blow when they published a joint report finding that the Department used an illegal, politicized process to appoint immigration judges with conservative political credentials from 2004 to December 2006. The report also found that the appointees frequently had little or no immigration law expertise and that the process resulted in a large number of immigration judge positions going unfilled at a time when the Department had a stated goal of increasing the number of judges.

Finally, analysis of the asylum decisions by the 16 judges who were appointed after consideration of their political credentials and who had decided at least 100 matters found that, on average, they were more likely to rule against asylum seekers than their colleagues on the same court who had been appointed according the department's politically neutral rules.

The EOIR immigration judges, employees of the Justice Department, play a major role in the nation's extensive and politically sensitive efforts to regulate the flow of immigrants into the United States.

In summary, TRAC found that in the two years since the improvement plan was made public the Justice Department has failed to implement measures that would increase oversight of immigration judges, to make the immigration appeals process more rigorous, or to consistently seek funding for additional judges.

On the positive side, the agency has substantially completed improvements in other areas, publishing standardized court procedures, assigning supervisory judges to all courts, and providing new resources to support the work of immigration judges.

In many other cases, however, the improvements have only been partially completed or completed in ways that raise questions about their effectiveness. For example, the agency has assigned an Assistant Chief Immigration Judge to handle all complaints against judges, but has not published information about how the process works and was unable to provide data on how many complaints had been processed.

This report is the second in a series funded by a two-year grant from the Carnegie Foundation to chart government efforts to increase the fairness and effectiveness of the Immigration Courts. It assesses at the two-year mark the changes that have occurred since then Attorney General Gonzales announced in August of 2006 that a series of steps were required "to improve the performance and the quality" of the Immigration Courts and the Board of Immigration Appeals. It builds on TRAC's previous data analyses of various immigration enforcement issues that were also supported by Syracuse University, the Ford Foundation, the JEHT Foundation, and the Haas Fund.

Ultimately, TRAC's series of reports will analyze whether these changes in the Immigration Court system actually result in measurable improvements in the adjudication of immigration cases. Some of the questions to be explored are whether asylum grant-rate disparities decrease, whether the number of aliens represented by attorneys increase, and whether the number of troublesome cases resulting in appeals decrease.

It must be acknowledged that altering the operation of complex agencies like the EOIR in a constructive way is by its very nature a genuine challenge. The challenge is compounded by the fact that the EOIR functions within a much larger and older institution --the Department of Justice --and seeks to serve the needs of agencies like Customs and Border Protection and Immigration and Customs Enforcement that operate under an entirely different unit, the Department of Homeland Security.

About the Research

A very wide range of source material was used in this report to document the actions that the government took, and did not take, to implement the 22 changes directed by Attorney General Alberto Gonzales. Although some of the information incorporated in the report is publicly available, other significant material was provided by EOIR only after a number of detailed inquiries by TRAC or on the basis of our repeated requests under the Freedom of Information Act.

The EOIR is responsible for interpreting and administering federal immigration laws in 54 specialized courts around the country. It is staffed by more than 200 Immigration Court judges who are appointed by the Attorney General and do not have tenure. EOIR also includes the Board of Immigration Appeals (BIA), a 15-member appellate body that reviews appeals of Immigration Court decisions brought by both aliens and the US enforcement agencies. In FY 2007, EOIR received over 334,000 matters in the Immigration Courts and 36,000 appeals to the Board of Immigration Appeals.

As stated above, Gonzales released the 22 Measures to Improve the Immigration Courts and Board of Immigration Appeals on August 9, 2006 following a "comprehensive review" of the Immigration Courts begun in January, 2006. According to a DOJ press release, the review was initiated because of "reports of judges failing to display temperament and produce work that meets the Department's standards."

In March, 2007, outgoing EOIR Director Kevin Rooney sent a memo to his staff updating the implementation of the proposed changes and in many cases providing target deadlines for their implementation.

Following is a description of the status at the two-year mark of each of the proposed 22 Immigration Court improvements.

Failed To Complete

The Justice Department and EOIR have failed to complete key improvement measures that go to the heart of ensuring that the Immigration Courts are staffed by capable, skilled judges that have sufficient time and resources to accurately do their job.

EOIR has not conducted any performance evaluations of Immigration Court judges or Board of Immigration Appeals members. The agency plans to conduct its first review of Board members in January, 2009. No date has been set for its first reviews of Immigration Court judges. (#1)

The Justice Department has not implemented a code of judicial conduct. The agency did release a proposed code in June, 2007. (#10)

The Justice Department has not finalized a rule that would decrease the use of single-member appellate "affirmances without an opinion" and increase more rigorous appellate reviews by a three-person panel. A proposed rule was issued in June, 2008. (#12)

The Justice Department has not issued even proposed rules that would return wrongly-decided cases to the BIA for reconsideration, (#12), or that would grant immigration judges and Board members authority to impose monetary sanctions in the courtroom against attorneys and fradulent-document "preparers." (#14, #15)

The Justice Department has not consistently sought increased funding for immigration judges since FY 2008, as specified by the Attorney General. The Justice Department has not even hired judges to fill existing positions; EOIR had 28 unfilled immigration judge openings as of July 24, 2008. (#16; also see TRAC's earlier report)

Substantially Completed

The Justice Department and EOIR have substantially implemented changes in some areas, most notably in the line supervision of immigration judges and in creating or updating support resources for judges:

DOJ and EOIR have appointed additional assistant chief immigration judges (ACIJs) and assigned ten of these judges to directly supervise subsets of Immigration Courts; in addition, six of these ACIJs are based in the field. (#9)

EOIR has completed a new Immigration Court practice manual that went into effect July 1, 2008, (#13), as well as a new intranet-based judicial benchbook (#6).

EOIR has begun nationwide implementation of a new digital audio recording system in the Immigration Courts. (#18)

DOJ has increased the size of the BIA from 11 to 15 and hired five new Board members. The Board is still two members short of the stated goal. (#17)

EOIR has implemented a new policy requiring all EOIR staff members to refer apparent instances of fraud and abuse in the immigration court systems. The agency has not, however, published any statistics about the number or nature of referrals that were received, how referrals were handled, or what actions ultimately resulted from them. (#21)

EOIR formed a pro bono committee and has implemented some changes it hoped would increase pro bono representation. Contrary to the Attorney General's directive, however, the agency did not include private bar stakeholders on the committee. The agency also has not publicly released the committee's full recommendations. (#22)

Partially Completed or Opaquely Implemented

In other cases, the agency has either partially implemented changes or implemented changes in an opaque and unmonitored way that limits their potential to meaningfully improve the Immigration Courts:

Judicial Oversight v. Judicial Independence

Two key improvement measures that have not been implemented by DOJ and EOIR concerning judicial oversight reflect a fundamental disagreement between the agencies and the National Association of Immigration Judges (NAIJ), the immigration judge's union, over the degree of judicial independence that should be provided to Immigration Court judges.
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Although EOIR has appointed a new Assistant Chief Immigration Judge to handle complaints against immigration judges, it has not published any information showing that it had "clearly define[d] ... [the] roles of EOIR, OPR, and OIG in the handling of any particular complaint." The agency was also unable to provide any information about how many complaints have been received and how those complaints were disposed of. (#11)

Although EOIR and DOJ have implemented a system for referring cases that show problems of judicial misconduct or misapplication of immigration law from both the Justice Department's Office of Immigration Litigation and the BIA, the agency does not systematically "track and report ... statistics" of such referrals or track and report other indicators as directed by the Attorney General. (#7)

EOIR has implemented aspects of the training for new and veteran judges, but it also reduced the quality or extent of other training components, such as an annual conference, due to lack of funding. Furthermore, some enhancements, such as a monthly immigration law update newsletter, have reduced value because of the limited time available to immigration judges. (#4)

EOIR has increased the speed of its court transcriptions, in part by hiring additional contractors. According to EOIR staff, however, the agency has not rectified key problems with the quality of transcriptions. (#19)

EOIR has instituted an immigration law exam for newly appointed judges that previously did not exist. The agency has not provided any evidence, however, that the new exam ensures that judges are "proficient in the principles of immigration law" and has not used examination development methods that ensure legitimacy and accountability. For example, the exam was designed solely within the agency, and the agency does not have a publicly available examination policy that describes how the test was drafted, what level of competency the exam is designed to evaluate, or how the exam is evaluated. (#3)

EOIR has stated that it has increased scrutiny of new immigration judges during a two year trial period and that it reports findings from reviews to the Deputy Attorney General. At least two judges have resigned shortly before the expiration of their trial period pending an unfavorable review. The agency has not, however, provided information on how they "continually monitor" a judge's "temperament and skills," how many judges were found to have problems with their temperament or skills, or what steps have been taken to "improve ... performance if needed." (#2)

Although EOIR has stated that it has increased scrutiny of staff interpreters and implemented monitoring of contract interpreters, it has abandoned a previously stated goal of certifying interpreters externally. In addition, according to NAIJ, knowledge of the complaint-based monitoring program among judges is limited at best. (#20)

Although EOIR stated that it systematically monitors judges with unusually high or unusually low asylum grant rate discrepancies, and that it uses such data among other factors to determine whether further action is necessary, it did not provide data on how often monitoring led to such action, details about the monitoring process itself, or criteria for how "unusually high or unusually low asylum grant rate discrepancies" were defined or determined. (#8)